Recent warnings and proposals for reform around SLAPPS

19 January 2023

Seeking to threaten or advance costly and time-consuming legal action to censor criticism is a strong-arm tactic typically used by the super-rich. Officially described as Strategic Lawsuits Against Public Participation (SLAPPs), threatening or bringing court proceedings is a well-established strategy often employed by prominent, powerful and wealthy adversaries. These proceedings are not to seek justice, but to intimidate and silence any critics, rather than because of any legal merit.

Recent warnings against SLAPPS

There is currently renewed concern, not least from the Solicitors Regulation Authority (SRA), that influential and high-net worth clients are increasingly instructing solicitors and law firms in England and Wales to pursue bogus litigation on their behalf. Published on 28 November 2022 — alongside guidance to anyone threatened with litigation to prevent the publication of information that could be in the public interest — the SRA has issued a warning to those individuals and firms which it is responsible for regulating against participating in what are clearly abusive or unmeritorious cases.

Although originally the SLAPPs phenomenon in the 1980s mainly affected those exercising their political rights or freedom of expression on matters of social significance, such as activists and environmentalists, today SLAPP cases can potentially affect all individuals who, in the name of public interest, denounce all different kinds of abuses. SLAPPs can include lawsuits disguised as defamation actions as a means of suppressing and harassing investigative journalists and academic researchers. It could also include litigation against whistleblowers for exposing an employer’s malpractice, fraud or misconduct as a means of draining that person’s financial and psychological resources with complex allegations of data protection, invasion of privacy and breach of confidence.

If a party to threatened litigation cannot afford to advance its case through the courts, they may have no choice but to concede. Equally, once proceedings are issued, a Defendant with significantly less resources than the Claimant may feel forced to settle, even if the case against them has poor prospects of success. SLAPPs can also be an effective way of deterring other potential targets from reporting wrongdoing, exposing corruption or asserting their rights, in this way quashing critical discourse and undermining public engagement. By making an example of what will happen to anyone who dares to speak out, this will often minimise further scrutiny for fear of legal retribution.

Recent proposals for anti-SLAPPs reform

On the plus side for SLAPPS victims, proposed reforms to the law are said to be in the pipeline, specifically aimed at protecting those who engage in public participation against manifestly unfounded or abusive civil court proceedings. In particular, the government has proposed a three- part test to identify any SLAPP-suit that would then be subject to early dismissal, namely: 1) that the case relates to a public interest issue; 2) that it has some hallmark features of an abuse of process, and; 3) that it has insufficient evidence of merit to warrant further judicial consideration.

In addition to a new statutory early dismissal process to stop SLAPPs cases in their tracks, allowing judges to throw out claims that lack merit, there are also suggestions of capping costs to address the stark inequality of arms in these types of cases. A formal costs protection regime would arguably shield SLAPPs Defendants from excessive costs risks, and enable abusive and unmeritorious claims to be properly defended. This is because the threat of high costs is said to be the single greatest weapon in intimidating and silencing the impecunious party, especially if litigation is strategically targeted at individuals, rather than the organisations that they work for. Finally, sizeable financial penalties may be used to punish those seeking to abuse the legal system through SLAPPs.

But are these procedural reforms just another ‘SLAPP’ in the face for free speech? How likely are they to come into force and, if so, what difference will they make to access to justice? For many, even though the government has promised to pursue legislative reform at the earliest opportunity, the proposals will simply not go far enough to adequately protect those who speak out in the public good. The strength of the super-rich is thought by some to be so overwhelming, that oligarchs will continue to retain an unfair advantage, stiffing debate and muzzling critics for fear of financial ruin.

Still, the steps taken by the SRA to urge lawyers to “guard against getting involved in abusive litigation aimed at silencing legitimate critics” may indirectly bring about the change needed, sooner rather than later. Put simply, by denying prospective SLAPPs Claimants of another crucial part of their arsenal, their legal team, this is far more likely to minimise or put an end to ‘lawfare’.

Key considerations for lawyers & clients

Importantly, regardless of whether or not a case fulfils all three limbs of the proposed new SLAPP- test, the SRA will still be able to take disciplinary action against solicitors and law firms in respect of unacceptable conduct on their part. SLAPP threats, if they achieve their goals, often do not reach the courts, but this does not in any way prevent the SRA from investigating misconduct complaints.

Ultimately, this means that the SRA is likely to come down hard against lawyers who threaten spurious or meritless claims, or who deliberately increase the costs of litigation, not least as a shot across the bows for all others agreeing to represent any client clearly misusing the legal system.

Needless to say, these issues go far beyond the rough and tumble of ordinary litigation, where the SRA openly acknowledges that it is not in the public interest for false or misleading information to be needlessly published by journalists etc. As such, taking action to prevent or remedy the infringing of a client’s rights in respect of their privacy and reputation remains perfectly legitimate. Equally, the SRA recognises that in the course of conduct leading up to and including litigation, lawyers must act in defence of their client’s interests and correspondence may need to be robust.

There is still, however, a limit as to how far a lawyer will be entitled to draw the line: undoubtedly far short of intimidating the Defendant on behalf of their client in the face of crippling legal costs, and exploiting the courts with action deliberately designed to ramp up costs and waste time.

Legal disclaimer

The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.

 Before acting on any of the information contained herein, expert advice should always be sought.

© Melissa Worth, January 2023

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